Baldwin v. City of Springfield

• Decision Date: 03 November 1897
• Parties: Baldwin, Appellant, v. City of Springfield
• Court: Missouri Supreme Court

42 S.W. 717

141 Mo. 205

Baldwin, Appellant, v. City of Springfield

Supreme Court of Missouri, First Division

November 3, 1897

Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.

Reversed and remanded.

Peter Helton and Lincoln & Lydy for appellant.

(1) The following three cases determine the main questions involved and fix the liability of defendant in this case. Bassett v. St. Joseph, 53 Mo. 290; Buesching v. Gaslight Co., 73 Mo. 219; Wiggin v. St. Louis, 135 Mo 558. (2) Pedestrians have the right to walk along and across streets at any point they may see fit. Henry v Railroad, 113 Mo. 525. And it is the duty of the city to keep the whole of its sidewalks in repair. Franke v. St Louis, 110 Mo. 516; Roe v. City of Kansas, 100 Mo. 190 (overruling Tritz v. City, 84 Mo. 632). (3) It is the duty of the city to keep its streets and sidewalks in a reasonably safe condition for persons traveling thereon and it is liable to one injured by reason of its negligence in this regard, even though the unsafe condition is brought about by persons other than agents of the city, if it had notice, and in the case at bar the city did have actual notice. Carrington v. St. Louis, 89 Mo. 208; Russell v. Columbia, 74 Mo. 480; Franke v. St. Louis, 110 Mo. 516. (4) The evidence fully established Jefferson street at the point where the injury occurred as a public street in said city. Meiners v. St. Louis, 130 Mo. 275; Golden v. City of Clinton, 54 Mo.App. 112. (5) But the city would in any event be liable for permitting an unguarded excavation at the side of Commercial street even if such excavation were on private property. Bassett v. St. Joseph, 53 Mo. 298; Halpin v. City of Kansas, 76 Mo. 335; Wiggin v. City of St. Louis, 135 Mo. 558; Kiley v. City of Kansas, 69 Mo. 108; Kiley v. City of Kansas, 87 Mo. 107.

Len Walker and V. O. Coltrane for respondent.

(1) Streets and parts of streets which are unnecessary for the convenience of public travel need not be opened, and until opened there is no liability on the part of the city for failing to keep such street in a reasonably safe condition for travel. Bassett v. St. Joseph, 53 Mo. 303; Craig v. Sedalia, 63 Mo. 419; Moore v. Cape Girardeau, 103 Mo. 470; Walker v. City of Kansas, 99 Mo. 652; Taubman v. Lexington, 25 Mo.App. 218. (2) In order to make a city liable for injuries for suffering a street to remain defective there must be an acceptance, express or implied, of the grant or dedication. 2 Dill. Mun. Corp. [4 Ed.], sec. 642; Golden v. Clinton, 54 Mo.App. 111; Moore v. Cape Girardeau, 103 Mo. 470. (3) The excavation complained of in the case at bar is not a nuisance created by the city, or its agents, nor is it maintained on corporate property. The city can not be held liable in damages for a failure to abate a nuisance existing on private property and not created by its agents. Kiley v. City of Kansas, 87 Mo. 103; Armstrong v. City, 79 Mo. 319; Davis v. Montgomery, 51 Ala. 139; Levy v. City of New York, 1 Sandf. (N. Y.) 465. (4) A corporation is to be held responsible for the condition of the highway, not for that of the adjoining land, and when the traveler voluntarily leaves the highway, and thereby sustains an injury, he has no action against the town. Nor are towns bound to erect barriers merely to prevent travelers from straying from the highway and from falling into a pit which they may reach by straying. Beach on Contrib. Neg., sec. 79; 2 Dill. Mun. Corp. [4 Ed.], sec. 1005; McHugh v. St. Paul, 70 N.W. 5; Bassett v. St. Joseph, 53 Mo. 290; Sparhawk v. Salem, 1 Allen, 30.

Barclay, P. J. Macfarlane, Robinson and Brace, JJ., concur.

OPINION

Barclay, P. J.

This action is for $ 3,000 as damages said to have been sustained by plaintiff in consequence of a fall into an excavation in the city of Springfield, Missouri. His claim is that the excavation was in a city street. The defendant denies that claim, and also asserts contributory negligence of the plaintiff in getting into the excavation. At the trial on the circuit, the plaintiff was forced to a nonsuit on account of a ruling (in the form of an instruction) that under the law and evidence he could not recover. To the giving of the instruction plaintiff excepted. After the usual motion and other steps in the trial court, he brought the case to the Supreme Court by appeal.

Plaintiff's testimony tends to prove the following facts:

The accident occurred about 9 o'clock P. M., March 28, 1895. Plaintiff had been talking with someone in a store on the northeast corner of Jefferson and Commercial streets in Springfield. When he came out of the store he walked west a few steps and then turned north into Jefferson street, as he supposed, but in fact he walked into an unguarded opening leading to a cellar or basement beneath the store he had just left. The night was dark. The electric lights, which had formerly been used to illuminate the streets in that vicinity, were not lit on that night. There were lights in some of the neighboring stores, but according to plaintiff's account, there was not light enough to reveal the opening into which he walked. In consequence of stepping unexpectedly into it, he fell, broke his ankle, and suffered the damages which form the subject of his present claim. Plat "A," which accompanies this [SEE PLAT A IN ORIGINAL] [SEE PLAT B IN ORIGINAL] opinion, shows the relative positions of Commercial and Jefferson streets. The plat marked "B" indicates the main features of the very place of the accident. The area into which plaintiff fell is about seven feet deep, six feet wide and ninety feet long (north and south.) On the west side (toward Jefferson street) the area is surmounted by a guardrail of iron, extending along the line "R-R," at a sufficient height to afford a barrier to warn persons approaching from the west. But on the south side (toward Commercial street) the area is open at the top where a flight of steps leads to the basement under the Wahl building.

The Wahl building line on the south is about two feet back of the original north line of the sidewalk of Commercial street. But the intervening space is open and used by the public as a sidewalk, from the street to the building line. The south line of the basement area coincides with an extension of said building line. If the sidewalk of Commercial street, at the northeast corner of that street and Jefferson, were extended northward along the latter street, with the usual width of ten feet, the basement area would fall within the space properly belonging to the sidewalk. Along the east side of Jefferson street there is, however, no finished sidewalk; but a cinder path or walk used by pedestrians extends northward to the railroad property. This cinder walk runs along Jefferson street, just west of the railing on the west of the basement area, from a point where the sidewalk of Commercial street stops on the northeast corner of that street and Jefferson.

The streets mentioned and other highways in the vicinity are all represented on a duly recorded plat, introduced in evidence, which purports to dedicate the same to public use. It is dated in 1869. Commercial street is an important street at this point. There is a business building on each of the four corners where it and Jefferson intersect. Jefferson street runs from the southern to the northern city limits. But counsel for defendant insist that the city has not accepted the part between Commercial and Chase streets in such a manner as to render the city liable for neglect to keep that part of the street in repair for travel. It is conceded that south of Commercial street and north of Chase street Jefferson street is a city highway, and that those portions of it are fully recognized by the city as a street.

Plaintiff did not fall into the area while passing along Commercial street. He admits that he turned the corner to go north on Jefferson to the railway property, where he expected to meet a friend.

As to the sort of user to which the part of Jefferson street in question has been subjected, the main facts disclosed were these: "It looked like it is a street that has been traveled." Teams "stand in there and wait for jobs." There is travel up and down the street as far as it goes. ...